Colorado law requires political committees, including issue committees, to register with the secretary of state and report "the name and address of each person who has contributed twenty dollars or more" and "the occupation and employer of each person who has made a contribution of one hundred dollars or more." Colo. Rev. Stat. § 1-45-108(1)(A)(I-II). A committee is defined as "two or more persons," Col. Const. art. XXVIII, § 2(10), thus covering only concerted political action, not individual speech. Committees must report such contributions individually within five days. 8 Code Col. Reg. 1505-6 §§ 3.1, 4.1. Failure to comply with Colorado's reporting requirements can result in civil penalties "of fifty dollars per day for each day that a statement or other information required to be filed . . . is not filed." Colo. Const. art. XXVIII, § 10(2)(a).

first learned about Colorado’s campaign finance laws when they organized to oppose the annexation of their neighborhood into the adjacent town of Parker. The group talked to neighbors, circulated postcards and planted yard signs. . . Because Sampson and the others failed to register with the government before speaking, the principal proponents of the annexation used Colorado’s campaign finance laws to sue them.

In Buckley v. Valeo, 424 U.S. 1 (1976), the United States Supreme Court upheld ceilings on contributions to candidates for political office as consistent with the First Amendment because of the government's interest in preventing corruption:

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.

424 U.S. at 26-27. However, two years later, the Court acknowledged that "[t]he risk of corruption perceived in cases involving candidate elections . . . simply is not present in a popular vote on a public issue." First National Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978). Relatedly, the Court thereafter emphasized associative rights to address ballot measures:

There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them. To place a Spartan limit -- or indeed any limit -- on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association.

In Sampson v. Buescher, Judge Harris L. Hartz, speaking for a unanimous three-judge panel, recognized "a legitimate public interest in financial disclosure from campaign organizations," but also found "that this interest is significantly attenuated when the organization is concerned with only a single ballot issue and when the contributions and expenditures are slight." Slip Op. at 26. Indeed, the opinion contrasted campaigns for candidates with referendums or ballot initiatives:

No human being is being evaluated. When many complain about the deterioration of public discourse--in particular, the inability or unwillingness of citizens to listen to proposals made by particular people or by members of particular groups--one could wonder about the utility of ad hominem arguments in evaluating ballot issues. Nondisclosure could require the debate to actually be about the merits of the proposition on the ballot.

the burden on Plaintiffs’ right to association imposed by Colorado’s registration and reporting requirements cannot be justified by a public interest in disclosure. The burdens are substantial. The average citizen cannot be expected to master on his or her own the many campaign financial-disclosure requirements set forth in Colorado’s constitution, the Campaign Act, and the Secretary of State’s Rules Concerning Campaign and Political Finance. Even if those rules that apply to issue committees may be few, one would have to sift through them all to determine which apply. As the Supreme Court recently observed in rejecting a proposed intricate interpretation of the term electioneering communication in 2 U.S.C. § 441b: "Prolix laws chill speech for the same reason that vague laws chill speech: People of common intelligence must necessarily guess at the law’s meaning and differ as to its application." Citizens United, 130 S. Ct. at 889 (brackets and internal quotation marks omitted). . .

Here, the financial burden of state regulation on Plaintiffs’ freedom of association approaches or exceeds the value of their financial contributions to their political effort; and the governmental interest in imposing those regulations is minimal, if not nonexistent, in light of the small size of the contributions. We therefore hold that it was unconstitutional to impose that burden on Plaintiffs.

Id. at 26-27, 30. The opinion declined to specify a "a bright line below which a ballot-issue committee cannot be required to report contributions and expenditures," deciding only that Colorado's disclosure requirements were unconstitutional as applied to small expenditures on simple ballot measures. Id. at 30-31.

And I support the 10th Circuit's limited ruling. Properly, the court chose not to opine on facts not at issue--such as California's controversial Proposition 8 referendum or spending on ballot measures by corporations. My initial view is that disclosure of citizen contributions isn't appropriate in any ballot measure--for the pro-debate reasons set forth by Judge Hartz, as confirmed by the 9th Circuit's ban on releasing Prop. 8 donor lists. Perry v. Schwarzenegger, No. 09-17551 (9th Cir. Dec. 11, 2009). And despite the Citizens United opinion upholding the First Amendment interest in corporate speech on candidates, there might be some wisdom in disclosing corporate contributions to speech on ballot measures, at least where a corporation would be directly affected--but it would be the worst sort of judicial activism to address that issue absent a full factual record.

Freedom of speech means that citizens, not government, get to decide whether to disclose their identities when they speak out about ballot issues. For those who don’t trust anonymous speech, the solution is not to listen to it.

This is a very important issue, because just as businesses have difficulty starting due to regulation, average people have difficulty engaging in politics when politics becomes regulated by the state. Effectively, this is a back-door abrogation of First Amendment rights.

2 comments:

Great post. The First Amendment means nothing if so basic an act as forming a grass-roots group to advocate some political measure or rebuff some political measure can be effectively removed by regulation.